Wednesday, June 22, 2016

The Washington Times has run this op-ed by two retired Army officers, Major General John D. Altenburg Jr. and Colonel Lisa M. Schenck, in opposition to the bipartisan proposal to transfer disposition power for major offenses from commanders to independent legally-trained prosecutors outside the chain of command. They argue that "[r]equiring another senior military lawyer to make a 'commander decision' will invite dysfunction and inefficiency." They contend:

Proponents of change want yet another senior military lawyer in yet another organization to decide to refer cases; this would require transfer of cases and further review before decision. Commanders with a direct leader interest in cases would not have a direct role in ensuring cases are efficiently and fairly prosecuted. Instead, a senior military attorney and staff in yet another office would process the case, creating delay and dysfunction. An officer not connected to the offender’s unit mission and combat readiness, as measured by its morale, training, leadership and discipline, would decide which cases to prosecute.

Here is the same paragraph annotated with some questions and comments:

Proponents of change want yet another senior military lawyer[1] in yet another organization[2] to decide to refer cases; this would require transfer of cases[3] and further review[4] before decision. Commanders with a direct leader interest in cases[5] would not have a direct[6] role in ensuring cases are efficiently and fairly prosecuted.[7] Instead, a senior military attorney and staff[8] in yet another office[9] would process[10] the case, creating delay[11] and dysfunction.[12] An officer not connected to the offender’s unit mission and combat readiness, as measured by its morale, training, leadership and discipline, would decide which cases to prosecute.[13]

1. The services already have senior judge advocates supervising line prosecutors. "Yet another" is unwarranted, since the independent prosecutors outside the chain of command would not be in addition to the staff judge advocate, they would supplant that officer with respect to advising on the disposition of charges in major cases.

2. Having a separate prosecution function is a minor change that need not entail added cost. The Army, for example, already has a fully staffed and highly regarded Trial Counsel Assistance Program. It could be made independent with the stroke of a pen -- and no added cost to the taxpayers.

3. Yes indeed, major charges would have to be sent to the prosecutors outside the chain of command for a disposition decision. That's the point.

4. The word "further" is misleading. The review would be conducted by prosecutors outside the chain of command. The implication that this would be redundant is incorrect.

5. That's the problem.

6. Nothing would prevent commanders or their staff judge advocates from offering their recommendations to the prosecutor outside the chain of command (provided a copy is furnished to defense counsel and and victims counsel).

7. The fair and efficient prosecution of cases is the lawyer-prosecutor's work. Commanders have no special insight with respect to either fairness or efficiency in the prosecution of major criminal charges.

8. See note 2 supra. TCAP already has the necessary staff.

9. See notes 1-2 supra.

10. It is unclear what is intended by the verb "process" in this sentence. All that is involved is for the chief trial counsel and her subordinates to review the investigative file and make a disposition decision, just as the commander currently "processes" cases.

11. There would be no appreciable delay. Charges in major cases, together with investigative reports, would be sent to the chief trial counsel. There would be no change in either the current rules on speedy trial or the statute of limitations. Any command input, see note 6 supra, could be subject to a short deadline to avoid delay.

12. "Dysfunction" is a familiar scare word, much like "second- and third-order effects." Just what "dysfunction" is intended?